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United States of America v. Kiond Jones

June 25, 2012

UNITED STATES OF AMERICA
v.
KIOND JONES, ALSO KNOWN AS "KIOND HING," AND "KION," ANTHONY PRADDY, ALSO KNOWN AS "BIRDMAN", AND TORRELL WHYTE, ALSO KNOWN AS "TERROR", DEFENDANTS.



The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM

Anthony Praddy is serving a sentence of 15 years' imprisonment pursuant to the Court's judgment of November 9, 2011. The Bureau of Prisons ("BOP") has classified Praddy's security level as "high," and has designated him to USP Big Sandy, a high-security facility in eastern Kentucky. His classification was based on an outdated Presentence Report ("PSR") containing allegations rejected by the jury at trial and by the Court at sentencing.

As explained below, the Court's post-sentencing role is closely circumscribed. It nevertheless writes to bring the issue to the attention of the Bureau of Prisons ("BOP"), in the hope - and firm belief - that that agency will see to it that the mistake is corrected.

BACKGROUND

On October 14, 2010, a jury found Praddy guilty of racketeering and racketeering conspiracy, conspiracy to distribute 100 kilograms or more of marijuana, use of a firearm in furtherance of the distribution conspiracy, and four instances of small-scale marijuana distribution. It was unable to reach a verdict on charges relating to the murder of Kevin Simon. A second jury found Praddy not guilty of those charges -- namely, murder in aid of racketeering and use of a firearm to commit the murder -- on May 2, 2011.

Prior to sentencing, the Probation Department prepared a PSR. Over defense counsel's objection, the PSR included facts related to the Simon murder as relevant conduct. At sentencing, however, the Court concluded that the government had not established Praddy's involvement in the murder by clear and convincing evidence and, accordingly, declined to consider it in imposing sentence, which, as noted, included a term of imprisonment of 15 years. The Court's Statement of Reasons also made clear that "the Court did not consider the murder of Kevin Simon when calculating the base offense level due to a lack of clear and convincing evidence." In addition, the Court directed the Probation Department to prepare a revised PSR omitting references to the murder.

In the meantime, BOP prepared an "Inmate Load and Security Designation Form" for Praddy. BOP uses the form -- known as a BP-337 -- to classify an inmate's security level. That classification then becomes a key factor in designating an inmate to a particular facility. Significantly, Praddy's BP-337 was prepared on November 15, 2011, a month before the revised PSR was completed on December 19, 2011.

Security classification is based on a number of factors, including the inmate's age, education level and history, if any, of drug or alcohol abuse. The factors are converted into points, which are added together to arrive at a "Total Security Score." See BOP Program Statement P5100.08, ch. 4 (Sept. 12, 2006), available at http://www.bop.gov/ policy/progstat/5100_008.pdf (last visited June 22, 2012).

One factor is particularly pertinent here: "Severity of current offense" measures "the most severe documented instant offense behavior regardless of the conviction offense" on a scale from 0 to 7. Id. ch. 4, p.7. Praddy's BP-337 assessed 7 points -- the maximum -- for the severity of his offense. See Ex. to Letter from Mitchell Dinnerstein (Mar. 19, 2012). The assessment was apparently based on the firearms conviction because the form recites, with liberal use of abbreviations, that Praddy "POSS F/A, SHOT/KILLED VCTM." Id. Praddy's drug convictions did not qualify for maximum severity because according to a BOP policy statement, an offense involving marijuana warrants 7 points only if, inter alia, it involves more than 620 kilograms of the drug. See BOP Program Statement P5100.08, app. A, p.1. The BP-337 states (correctly) that Praddy was convicted of "DIST 100KILOS OF MJ," a crime that the BOP considers to be of "moderate severity" and eligible for only 3 points.

As noted, the revised PSR was completed on December 19, 2011. In accordance with the Court's directive, the revision omitted the Simon murder as relevant conduct. It is not clear whether the revised PSR was ever sent to the BOP, but on March 19, 2012, Praddy's counsel wrote to Big Sandy's warden, asking him to "review the classification scoring." The status of that request is also not clear from the record.

ANALYSIS

Praddy challenges his classification and designation in two related ways. First, he argues that the revised PSR remains "filled with erroneous statements unproven to a jury," that the errors should be corrected, and that "the Classification Unit of the Bureau of Prisons [should] be notified of the corrections to be made." Letter from Mitchell Dinnerstein (Dec. 27, 2011) at 2. Second, he requests that "the Classification Unit be told in the strongest terms that the present classification . . . should be revised and that he should be reclassified from an inappropriate high security United States Penitentiary." Id.

A. Challenges to the PSR

The PSR is a court document, prepared by court officers at the court's direction. See United States v. Charmer Indus., Inc., 711 F.2d 1164, 1169-70 (2d Cir. 1983). A PSR may eventually be used for other purposes, including security classification by the BOP, but its core function is "to assist the court in determining the appropriate sentence." Id. at 1170. Given the importance of the PSR's function, its accuracy is crucial. See id. at 1171 ("[C]onfidentiality of the presentence report is not maintained strictly, for ...


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